Challenge Of Treatment Plant's Water Quality Exception Fails

A plan that alters regulations for the operation of a wastewater treatment plant that disposes of effluent into a Sierra Nevada foothills creek, rather than requiring improvements to the plant, has been upheld by the First District Court of Appeal.

Anglers and environmentalists sued over the plan, arguing state water quality regulators violated the California Environmental Quality Act and the Porter-Cologne Water Quality Control Act. But a unanimous three-judge panel of the First District, Division One, ruled for the government.

Deer Creek runs through the lower foothills of El Dorado and Sacramento counties before flowing into the Cosumnes River near Elk Grove. In 1974, El Dorado Irrigation District (EID) built a wastewater treatment plant on Deer Creek below Cameron Park Lake. The treatment plant's effluent constitutes a majority of the flow in Deer Creek during much of the summer and fall.

The creek was subject to the State Water Resources Control Board's plans adopted in 1989, 1994 and 1998 for the Sacramento and San Joaquin rivers basin. The basin plan contained a generic "Delta 5-degree requirement," under which discharges were not permitted to raise the temperature of natural receiving waters by more than 5 degrees. Discharges from EID's treatment plant regularly exceeded the basin plan's objectives for temperature, as well as for pH and turbidity. After significant plant upgrades, the temperature of effluent remained too warm. In lieu of making further plant improvements, the district commenced a "site-specific basin plan amendment" for Deer Creek.

The amendment actually provided greater temperature restrictions for the period of January through August, the time when water flows in the creek are naturally their highest. But temperature rules were relaxed for September through December. In 2003, the Central Valley Regional Water Quality Control Board accepted the amendment, and the State Water Resources Control Board approved it, as did the U.S. Environmental Protection Agency.

Water temperature is critical for salmon and trout, which require cold water environments. The California Sportfishing Protection Alliance and environmentalists sued the state board to set aside the amendment and require preparation of temperature requirements that would allow salmon and trout to live in Deer Creek. A San Francisco Superior Court judge ruled for the state, a decision upheld on appeal.

The First District opinion contains great detail about the facts of the case and the administrative procedure, and cites statutes and case law at length. The opinion devotes less space to analysis of the Alliance's claims.

The California Environmental Quality Act (CEQA) does not apply to certified regulatory programs such as this one. Still, CEQA's broad policy goals and substantive standards do apply, so the regional and state boards follow an environmental review process that is the functional equivalent of CEQA. The Alliance argued the study approved by the regional board was the equivalent of a negative declaration — a document that may be prepared when a project would have no significant environmental impacts. Supporting the Alliance's argument was a regional board checklist. A box was marked next to the statement, "The proposed project could not have a significant effect on the environment and a negative declaration will be prepared."

Despite the checklist, the court found the regional board prepared a full environmental study based on scientific studies and consultation with other public agencies and experts.

"This is not a case in which the regional board merely offered a checklist that denied the project would have any environmental impact and ‘obviously intended its documentation to be the functional equivalent of a negative declaration,'" Justice Douglas Swager wrote for the court, citing City of Arcadia v. State Water Resources Control Board, (2006) 135 Cal.App.4th 1392, 1423. "Rather, when read in its entirety the report demonstrates that the regional board considered all significant implications on the environment of the decision to adopt the proposed site-specific temperature amendments, in the nature of a full EIR, before finding that the project will not have a significant adverse effect on Deer Creek water quality objectives."

The court also ruled that there was nothing about the marked checklist that misled the public.

Regarding the Porter-Cologne Act, the Alliance argued that there was "undisputed and overwhelming" evidence that rainbow trout had historically inhabited Deer Creek, and that salmon could spawn in the waterway. These were "beneficial uses" that Porter-Cologne required state officials to protect, the Alliance argued.

That assertions about trout conflicted with the conclusion of a state fisheries biologist. He said Deer Creek has not provided for a viable, self-sustaining population of rainbow trout before or after construction of the wastewater treatment plant. Swager called this "a classic case of conflicting evidence," which the appellate court was required to resolve in favor of the prevailing party at the trial court — namely, the state board.

The court also rejected the Alliance's argument that the amendment would cause conditions that prevent salmon from migrating upstream into Deer Creek.

The Case:
California Sportfishing Protection Alliance v. State Water Resources Control Board, No. A117494, 08 C.D.O.S. 3259, 2008 DJDAR 3931. Filed March 21, 2008
For the Alliance: Greg Loarie, Earthjustice, (510) 550-6725.
For the state board: William Jenkins, attorney general's office, (415) 703-5527.